Last Updated on 15th January 2022
A lady sent some questions to Hazrat Amirul Momineen, Khalifatul Masih Vaa about nikah [the Islamic marriage] and talaq [divorce].
Huzooraa, in a letter dated 17 August 2020, gave a detailed reply to those questions and said:
“I. A divorce, be it talaq or khula, does not require both parties [husband and wife] to agree or to have witnesses. However, for a nikah to take place, it is necessary to fulfil both conditions. This is because nikah is an agreement between the parties, which requires the consent of both the parties and of the girl’s guardian [wali] as well as the presence of witnesses. There is also the commandment to announce and declare this contract.
“Islam has given both the parties the power to terminate the marriage contract [nikah], which is termed as khula and talaq. However, just as a woman cannot perform her nikah on her own but does so through her wali, so too can she invoke khula only through dar al-qaza or the ruler of that time. This is in order to protect her rights in case of a khula. On the other hand, just as a man arranges his nikah himself, so too can he directly issue a talaq himself because he is obligated to pay the woman’s dues in case of a talaq. The Promised Messiahas, while elucidating the philosophy of khula and talaq, states:
“‘The Islamic Shariah has not only placed the authority to divorce the woman in the hands of the man when he observes a fault or finds an incompatibility but has also given the woman the power to get a divorce through the ruler of the time. And when a woman gets a divorce through the ruler, it is termed as khula in Islamic terminology. If a woman finds her husband to be cruel, or if he beats her unjustly, or abuses her in some other intolerable way, or is incompatible for any other reason, or he is indeed impotent or changes his religion, or if there is any other reason which makes it unbearable for the woman to live in his house, then in all such cases the woman or one of her walis should complain to the ruler of the time. And it shall be obligatory upon the ruler of that time to separate the woman from the man by his decree and annul the marriage if he really considers the complaint of the woman to be true. However, in this case, it would also be necessary to summon the man to court to [defend himself] as to why his wife should not be separated from him.
“Now, look at how fair it is that, just as Islam does not like for a woman to marry someone directly without [the agency] of a wali who may be her father or brother or any other loved one, likewise it also does not like for a woman to separate from her husband herself like the man; rather, in the case of separation even more caution has been excercised than with marriage insomuch that the agency of the ruler has been made compulsory so that the woman may not inflict any harm to herself on account of her gullibility. (Chashma-e-Ma‘rifat [Urdu], Ruhani Khazain, Vol. 23, p. 288-289)
“Since khula is conducted through dar al-qaza, the testimony is automatically established. However, since talaq does not happen in this manner, if both the spouses agree to the talaq going ahead and there is no disagreement between them, then such a divorce will be considered effective even without witnesses. Therefore, having witnesses for the talaq is mustahab i.e. preferable but it is not compulsory. Where the Holy Quran mentions witnesses in the matter of divorce and remarriage, it has declared it an ‘advice’. The Holy Quran states:
فَاِذَا بَلَغۡنَ اَجَلَهُنَّ فَاَمۡسِكُوۡهُنَّ بِمَعۡرُوۡفٍ اَوۡ فَارِقُوۡهُنَّ بِمَعۡرُوۡفٍ وَّ اَشۡهِدُوۡا ذَوَيۡ عَدۡلٍ مِّنۡكُمۡ وَ اَقِيۡمُوا الشَّهَادَةَ لِلّٰهِ ؕ ذٰلِكُمۡ يُوۡعَظُ بِهٖ مَنۡ كَانَ يُؤۡمِنُ بِاللّٰهِ وَ الۡيَوۡمِ الۡاٰخِرِ ۬ؕ وَ مَنۡ يَّتَّقِ اللّٰهَ يَجۡعَلۡ لَّهٗ مَخۡرَجًا ۙ
“‘Then, when they are about to reach their [prescribed] term, keep them with kindness, or put them away with kindness, and call to witness two just persons from among you; and bear [true]witness for Allah. This is by which is admonished he who believes in Allah and the Last Day. And he who fears Allah — He will make for him a way out.’ (Surah al-Talaq, Ch.65: V.3)
“Jurists also agree that if a man issues a talaq their spouse or, [if legally permitted], returns [ruju‘] to the same spouse without having witnesses, their talaq or ruju‘ will not be affected by the lack of witnesses.
“II. As far as the talaq, which is issued in a state of anger, is concerned, when a man divorces his wife, he takes this step indeed out of anger at her behaviour that he considers unbearable and futile. No man would divorce his wife while being happy with her. Therefore, a divorce issued in such a state of indignation will also be effective.
“However, if the person was raging to such an extent that he was in a state of insanity and he hastily divorced his wife without considering the consequences, but became remorseful once the state of madness subsided and he finally realised his mistake, then, for this kind of situation, the Holy Quran has said:
لَا يُؤَاخِذُكُمُ اللّٰهُ بِاللَّغۡوِ فِيۡۤ اَيۡمَانِكُمۡ وَ لٰكِنۡ يُّؤَاخِذُكُمۡ بِمَا كَسَبَتۡ قُلُوۡبُكُمۡ ؕ وَ اللّٰهُ غَفُوۡرٌ حَلِيۡمٌ
“‘Allah will not call you to account for such of your oaths as are vain, but He will call you to account for what your hearts have earned. And Allah is Most Forgiving, Forbearing.’ (Surah al-Baqarah, Ch.2: V.226)
“III. A conditional talaq also becomes effective upon the fulfilment of the condition. Hence, Nafi‘, the disciple of Hazrat Abdullah bin Umarra who was also his freed slave, narrates that a man told his wife that if she went out, she would be considered divorced. Upon this, Hazrat Abdullah bin Umarra gave the fatwa that if his wife indeed went out then she would indeed be considered divorced and if she did not go out then nothing would happen to her. (Sahih Bukhari, Kitab at-talaq)
“The Promised Messiahas states in this regard:
“‘If there is a condition that if such and such happens then one would be considered divorced and if that condition is actually met, then then the talaq becomes effective indeed. For example, if a person says that if he ate such and such fruit then he would be considered divorced. If he then indeed eats such fruit, the divorce becomes effective.’ (Badr, Vol. 2, dated 12 June 1903, p. 162)
“IV. The preferred way for talaq is that the husband should issue the divorce in such a tuhr [the days of purity between each menstrual cycle] during which he has not established an intimate relationship with her. However, if he does not do so and divorces her during pregnancy, menstruation or the postpartum period [nifaas], then such a divorce shall also be effective, because if the divorce that is granted during a state of tuhr during which no intimate relationship was established, had been the only effective talaq, then the discussion on the iddah upon talaq of a pregnant woman in the Holy Quran would be in vain. Therefore, the statement regarding iddah upon talaq of a pregnant woman in the Holy Quran is proof of the fact that a divorce granted during pregnancy is also considered effective.
“Similarly, regarding the divorce granted during menstruation, the following statement of Hazrat Abdullah bin Umarra is narrated in the books of hadith that he considered the talaq granted [by someone] to his wife during her menstrual period as an effective divorce. (Sahih Muslim, Kitab at-talaq)
“V. A divorce after which the ruling of iddah applies to the wife, regarding this iddah, there is a Quranic command that during this time, the husband should not evict the wife from the house, nor should the wife leave her house; rather, she should spend the iddah period at the husband’s house. Hence, it states:
لَا تُخۡرِجُوۡهُنَّ مِنۡۢ بُيُوۡتِهِنَّ وَ لَا يَخۡرُجۡنَ
“‘Turn them not out of their houses, nor should they [themselves] leave.’ (Surah al-Talaq, Ch.65, V.2)
“Islam does not impose any such restrictions on a divorced woman during the period of iddah with regard to her adornment or going out of the house for work and other obligations, as it does in the case of a widow during her iddah. On the contrary, in the ahadith, the opposite ruling is found for a divorced woman. Hence, the Holy Prophetsa not only allowed a woman to go out during the iddah period upon talaq, but also expressed his liking for her doing so. Hazrat Jabir bin Abdullahra narrates:
طُلِّقَتْ خَالَتِي فَأَرَادَتْ أَنْ تَجُدَّ نَخْلَهَا فَزَجَرَهَا رَجُلٌ أَنْ تَخْرُجَ فَأَتَتْ النَّبِيَّ صَلَّى اللّٰهُ عَلَيْهِ وَسَلَّمَ فَقَالَ بَلَى فَجُدِّي نَخْلَكِ فَإِنَّكِ عَسَى أَنْ تَصَدَّقِي أَوْ تَفْعَلِي مَعْرُوفًا
“‘My maternal aunt was divorced, and she intended to pluck dates from her orchard. A person scolded her for having come out [during the period of iddah]. She came to Allah’s Prophetsa and he said: ‘Certainly you can pluck dates from your orchard of palms, for perhaps you may give charity or do an act of kindness.’ (Sahih Muslim, Kitab al-Talaq)
“VI. The ruling that applies to talaq al-ba’in, also applies to khula, that is, a new nikah is necessary for remarriage after that, without which recourse [ruju‘] cannot take place.”